Butt v Mrowka - [2010] NSWCA 108

New South Wales

Court of Appeal

CITATION: Butt v Mrowka [2010] NSWCA 108

HEARING DATE(S): 15 April 2010

JUDGMENT DATE:
17 May 2010

JUDGMENT OF: Tobias JA at 1; McColl JA at 2; Sackville AJA at 3

DECISION: (1) Appeal dismissed
(2) The appellant pay the respondent’s costs of the appeal
(3) The respondent’s application for leave to cross-appeal be dismissed
(4) The respondent pay the appellant’s costs of the application for leave to cross-appeal

CATCHWORDS: NEGLIGENCE—motor vehicle accident on narrow track—collision between motorcycle driven by appellant and station wagon driven by respondent—appellant injured—primary Judge found negligence not made outAPPELLATE REVIEW—unchallenged physical evidence—evidence supports primary Judge’s findingCOSTS—respondent’s offer of compromise—primary Judge found that the offer contained no genuine element of compromise—respondent’s cross-appeal involves no issue of principle

LEGISLATION CITED: Civil Liability Act 2002Uniform Civil Procedure Rules 2005

CASES CITED: Derrick v Cheung [2001] HCA 48; 181 ALR 301 Fox v Percy [2003] HCA 22; 214 CLR 118 Hobartville Stud Pty Ltd v Union Insurance Co Ltd (1991) 25 NSWLR 358 Knight v Maclean [2002] NSWCA 314 Leichhardt Municipal Council v Green [2004] NSWCA 341The Anderson Group Pty Ltd v Tynan Motors Pty Ltd (No 2) [2006] NSWCA 120; 67 NSWLR 706 Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422

PARTIES: Christopher Butt (Appellant)
William Mrowka (Respondent)

FILE NUMBER(S): CA 2009/00298282

COUNSEL: P Maiden SC; M Holz (Appellant)
K P Rewell SC; M A Cleary (Respondent)

SOLICITORS: Byrnes & Cox Lawyers (Appellant)
Sparke Helmore Lawyers (Respondent)

LOWER COURT JURISDICTION: Compensation Court

LOWER COURT FILE NUMBER(S): DC 1/06

LOWER COURT JUDICIAL OFFICER: Boulton ADCJ

LOWER COURT DATE OF DECISION: 17 April 2009

CA 2009/00298282

TOBIAS JA
McCOLL JA
SACKVILLE AJA
Monday 17 May 2010

BUTT v MROWKA

Judgment

1 TOBIAS JA: I agree with Sackville AJA.

2 McCOLL JA: I agree with Sackville AJA’s reasons and the orders he proposes.

3 SACKVILLE AJA: The appellant, then aged 16, was injured on 29 December 2003. He was riding an unregistered 125cc Suzuki Moto Crosse motorcycle along Spring Creek Road, Lake Cathie, when he collided with the respondent’s Toyota Hilux four-wheel drive station wagon. The motorcycle was suitable for offroad travel and was not capable of being registered for use on a public road. The motorcycle did not have a speedometer.

4 The appellant was travelling south along Spring Creek Road, a narrow gravel-logging track within the Queens Lake State Forest, when he was confronted with the respondent’s vehicle travelling in the opposite direction around a curve in the road. The motorcycle collided with the station wagon on the latter’s front near side. In consequence, the appellant suffered serious orthopaedic injuries.

5 Following a four-day hearing, from 23 to 26 March 2009, in the District Court at Port Macquarie, the primary Judge (Boulton ADCJ) entered a verdict for the respondent on 17 April 2009. His Honour found (at 24) that none of the particulars of negligence alleged in the Statement of Claim had been…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Butt v Mrowka

Details

AGLC: Butt v Mrowka [2010] NSWCA 108
Case: [2010] NSWCA 108
Decision Date: 17 May 2010

CaseChat Overview and Summary

The appellant, who was injured in a collision between his motorcycle and the respondent's station wagon on a narrow track, appealed a decision of the primary Judge who had found that the respondent was not negligent. The appeal was heard in the Court of Appeal of New South Wales by Tobias and McColl JJA and Sackville AJA.

The central legal issue before the Court of Appeal was whether the primary Judge erred in finding that the respondent had not been negligent, and therefore not liable for the appellant's injuries. A secondary issue arose from the respondent's application for leave to cross-appeal concerning costs.

The Court of Appeal dismissed the appeal, finding that the primary Judge's conclusion that negligence was not made out was supported by the unchallenged physical evidence. The Court affirmed the primary Judge's finding that the respondent's offer of compromise contained no genuine element of compromise, and therefore dismissed the respondent's application for leave to cross-appeal.

Consequently, the appeal was dismissed, with the appellant ordered to pay the respondent's costs of the appeal. The respondent's application for leave to cross-appeal was also dismissed, with the respondent ordered to pay the appellant's costs of that application.

Orders

Orders of the court

(1) Appeal dismissed

(2) The appellant pay the respondent’s costs of the appeal

(3) The respondent’s application for leave to cross-appeal be dismissed

(4) The respondent pay the appellant’s costs of the application for leave to cross-appeal

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Butt v Mrowka [2010] NSWCA 108
HEARING DATE(S):	15 April 2010
JUDGMENT DATE:	17 May 2010
JUDGMENT OF:	Tobias JA at 1; McColl JA at 2; Sackville AJA at 3
DECISION:	(1) Appeal dismissed (2) The appellant pay the respondent’s costs of the appeal (3) The respondent’s application for leave to cross-appeal be dismissed (4) The respondent pay the appellant’s costs of the application for leave to cross-appeal
CATCHWORDS:	NEGLIGENCE—motor vehicle accident on narrow track—collision between motorcycle driven by appellant and station wagon driven by respondent—appellant injured—primary Judge found negligence not made outAPPELLATE REVIEW—unchallenged physical evidence—evidence supports primary Judge’s findingCOSTS—respondent’s offer of compromise—primary Judge found that the offer contained no genuine element of compromise—respondent’s cross-appeal involves no issue of principle
LEGISLATION CITED:	Civil Liability Act 2002Uniform Civil Procedure Rules 2005
CASES CITED:	Derrick v Cheung [2001] HCA 48; 181 ALR 301 Fox v Percy [2003] HCA 22; 214 CLR 118 Hobartville Stud Pty Ltd v Union Insurance Co Ltd (1991) 25 NSWLR 358 Knight v Maclean [2002] NSWCA 314 Leichhardt Municipal Council v Green [2004] NSWCA 341The Anderson Group Pty Ltd v Tynan Motors Pty Ltd (No 2) [2006] NSWCA 120; 67 NSWLR 706 Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422
PARTIES:	Christopher Butt (Appellant) William Mrowka (Respondent)
FILE NUMBER(S):	CA 2009/00298282
COUNSEL:	P Maiden SC; M Holz (Appellant) K P Rewell SC; M A Cleary (Respondent)
SOLICITORS:	Byrnes & Cox Lawyers (Appellant) Sparke Helmore Lawyers (Respondent)
LOWER COURT JURISDICTION:	Compensation Court
LOWER COURT FILE NUMBER(S):	DC 1/06
LOWER COURT JUDICIAL OFFICER:	Boulton ADCJ
LOWER COURT DATE OF DECISION:	17 April 2009